REPORT. EN United in diversity EN. European Parliament A8-0230/

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1 European Parliament Plenary sitting A8-0230/ REPORT on the request for defence of the privileges and immunities of Rosario Crocetta (2016/2015(IMM)) Committee on Legal Affairs Rapporteur: Heidi Hautala RR\ doc PE v02-00 United in diversity

2 PR_IMM_Defence CONTTS Page PROPOSAL FOR A EUROPEAN PARLIAMT DECISION... 3 EXPLANATORY STATEMT... 5 RESULT OF FINAL VOTE IN COMMITTEE RESPONSIBLE PE v /10 RR\ doc

3 PROPOSAL FOR A EUROPEAN PARLIAMT DECISION on the request for defence of the privileges and immunities of Rosario Crocetta (2016/2015(IMM)) The European Parliament, having regard to the request by Rosario Crocetta of 7 January 2016, announced in plenary on 21 January 2016, for the defence of his privileges and immunities in connection with criminal proceedings pending before the third Criminal Chamber of the Court of Palermo, Italy (RGNR No 20445/2012), having heard Rosario Crocetta in accordance with Rule 9(5) of its Rules of Procedure, having regard to Articles 8 and 9 of Protocol No 7 on the Privileges and Immunities of the European Union, and Article 6(2) of the Act of 20 September 1976 concerning the election of the Members of the European Parliament by direct universal suffrage, having regard to the judgments of the Court of Justice of the European Union of 12 May 1964, 10 July 1986, 15 and 21 October 2008, 19 March 2010, 6 September 2011 and 17 January , having regard to Article 595 of the Italian Criminal Code, having regard to Rule 5(2) and Rules 7 and 9 of its Rules of Procedure, having regard to the report of the Committee on Legal Affairs (A8-0230/2016), A. whereas a former Member of the European Parliament, Rosario Crocetta, has requested the defence of his parliamentary immunity in connection with criminal proceedings pending before the third Criminal Chamber of the Court of Palermo; whereas, according to the notice served by the Public Prosecutor s Office, Mr Crocetta is alleged to have made defamatory statements, which behaviour is punishable under Article 595 of the Italian Criminal Code; B. whereas, according to Article 8 of Protocol No 7, Members of the European Parliament may not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties; whereas such immunity must, to the extent that it seeks to protect the freedom of expression and independence of Members of the European Parliament, be considered as an absolute immunity barring any judicial proceedings in respect of an opinion expressed or a vote 1 Judgment of the Court of Justice of 12 May 1964, Wagner v Fohrmann and Krier, 101/63, ECLI:EU:C:1964:28; judgment of the Court of Justice of 10 July 1986, Wybot v Faure and others, 149/85, ECLI:EU:C:1986:310; judgment of the General Court of 15 October 2008, Mote v Parliament, T-345/05, ECLI:EU:T:2008:440; judgment of the Court of Justice of 21 October 2008, Marra v De Gregorio and Clemente, C-200/07 and C-201/07, ECLI:EU:C:2008:579; judgment of the General Court of 19 March 2010, Gollnisch v Parliament, T-42/06, ECLI:EU:T:2010:102; judgment of the Court of Justice of 6 September 2011, Patriciello, C-163/10, ECLI: EU:C:2011:543; judgment of the General Court of 17 January 2013, Gollnisch v Parliament, T-346/11 and T-347/11, ECLI:EU:T:2013:23. RR\ doc 3/10 PE v02-00

4 cast in the exercise of parliamentary duties 1 ; C. whereas the Court of Justice has held, that, in order to enjoy immunity, an opinion must be expressed by a Member of the European Parliament in the performance of his duties, thus entailing the requirement of a link between the opinion expressed and the parliamentary duties; whereas such link must be direct and obvious 2 ; D. whereas Rosario Crocetta was a Member of the European Parliament when he made the statements in question; E. whereas Mr Crocetta s parliamentary record shows that he had always been very active in the fight against organised crime and its impact on the Union and its Member States; whereas he also focused on the influence of systematic corruption on politics and the economy, especially as regards public procurement in the field of environmental policy; F. whereas the facts of the case, as manifested in the documents provided to the Committee on Legal Affairs and in the hearing before the latter, indicate that Mr Crocetta s statements have a direct and obvious connection with his parliamentary duties; G. whereas Rosario Crocetta can therefore be deemed to have been acting in the performance of his duties as a Member of the European Parliament; 1. Decides to defend the immunity and privileges of Rosario Crocetta; 2. Instructs its President to forward this decision and the report of its competent committee immediately to the appropriate authorities of the Italian Republic and to Rosario Crocetta. 1 Joined Cases C-200/07 and C-201/07 Marra, cited above, paragraph Case C-163/10 Patriciello, cited above, paragraphs 33 and 35. PE v /10 RR\ doc

5 EXPLANATORY STATEMT 1. Context At the plenary sitting of 21 January 2016, the President announced, under Rule 9(1) of the Rules of Procedure, that he had received a request from Rosario Crocetta, a former Member of the European Parliament, concerning the defence of his parliamentary immunity in connection with criminal proceedings pending before the Court of Palermo (Italy). The President referred the request to the Committee on Legal Affairs under Rule 9(1) of the Rules of Procedure. On 2 October 2012, during a political debate at the Pio La Torre Centre in Palermo, Rosario Crocetta made the following statements: - On Sunday, at the convention I am due to hold, I shall give the names and surnames of those involved in the agreement between Musumeci and Miccichè, to resume the discussion on the four Mafia-run waste-to-energy (WTE) plants. - I know for sure that Musumeci and Miccichè have come to an agreement to resume the construction of the four WTE plants in a fake procurement procedure: it s a contract which it s been proven is controlled by the Mafia. I shall reveal the details at my convention on Sunday at the Politeama Theatre in Palermo. Two politicians were talking in that recording one could be seen, and the other not one is from the PDL; and he says that Saverio Romano and Firrarello, whom this person apparently met, guaranteed - he added - PDL support for the candidacy of Miccichè if he gave his approval, and that Miccichè would give his approval, inter alia. On 7 October 2012, during an electoral meeting on the stage of the Politeama Theatre in Palermo, Mr Crocetta made the following statement: - I m not applying to be a policeman, he said. But we, on the other hand, have done a great job of monitoring our lists we don t have any people under investigation, or convicted criminals, nor do we have anyone with dubious CVs. As for Musumeci, on the other hand, I say to him: he should have done the same, because there are a lot of people on their lists who should be arrested. At the request of the aggrieved parties, the Public Prosecutor s Office at the Court of Palermo charged Mr Crocetta with the offence of defamation punishable under Article 595 of the Italian Criminal Code. On 15 January 2016 Mr Crocetta submitted a request for the defence of his immunity, under Article 8 of the Protocol No 7 and Rule 7 of the Parliament s Rules of Procedure. On 15 March 2016 the Committee on Legal Affairs heard Mr Crocetta in accordance with Rule 9(5) of the Rules of Procedure. On the same occasion, he submitted additional documents in accordance with Rule 9(5), first subparagraph. RR\ doc 5/10 PE v02-00

6 2. Law and procedure on the immunity of Members of the European Parliament Articles 8 and 9 of the Protocol No 7 on the Privileges and Immunities of the European Union read as follows: Article 8 Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties. Article 9 During the sessions of the European Parliament, its Members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members. Rules 5, 7 and 9 of the Rules of Procedure of the European Parliament read as follows: Rule 5 - Privileges and immunities 1. Members shall enjoy privileges and immunities in accordance with the Protocol on the Privileges and Immunities of the European Union. 2. Parliamentary immunity is not a Member s personal privilege but a guarantee of the independence of Parliament as a whole and of its Members. (...) Rule 7 - Defence of privileges and immunity 1. In cases where the privileges and immunities of a Member or former Member are alleged to have been breached by the authorities of a Member State, a request for a Parliament decision as to whether there has, in fact, been a breach of those privileges and immunities may be made in accordance with Rule 9(1). 2. In particular, such a request for the defence of privileges and immunities may be made if it is considered that the circumstances constitute an administrative or other restriction on the free movement of Members travelling to or from the place of meeting of Parliament or on an opinion expressed or a vote cast in the performance of their duties, or that they fall within the scope of Article 9 of the Protocol on the Privileges and Immunities of the European Union. PE v /10 RR\ doc

7 3. A request for the defence of the privileges and immunities of a Member shall not be admissible if a request for the waiver or defence of that Member s immunity has already been received in respect of the same legal proceedings, whether or not a decision was taken at that time. (...) Rule 9 - Procedures on immunity 1. Any request addressed to the President by a competent authority of a Member State that the immunity of a Member be waived, or by a Member or a former Member that privileges and immunities be defended, shall be announced in Parliament and referred to the committee responsible. (...) 2. The committee shall consider without delay, but having regard to their relative complexity, requests for the waiver of immunity or requests for the defence of privileges and immunities. 3. The committee shall make a proposal for a reasoned decision which recommends the adoption or rejection of the request for the waiver of immunity or for the defence of privileges and immunities. 4. The committee may ask the authority concerned to provide any information or explanation which the committee deems necessary in order for it to form an opinion on whether immunity should be waived or defended. 5. The Member concerned shall be given an opportunity to be heard, may present any documents or other written evidence deemed by that Member to be relevant and may be represented by another Member. The Member shall not be present during debates on the request for waiver or defence of his or her immunity, except for the hearing itself. The chair of the committee shall invite the Member to be heard, indicating a date and time. The Member may renounce the right to be heard. If the Member fails to attend the hearing pursuant to that invitation, he or she shall be deemed to have renounced the right to be heard, unless he or she has asked to be excused from being heard on the date and at the time proposed, giving reasons. The chair of the committee shall rule on whether such a request to be excused is to be accepted in view of the reasons given, and no appeals shall be permitted on this point. If the chair of the committee grants the request to be excused, he or she shall invite the Member to be heard at a new date and time. If the Member fails to comply with the second invitation to be heard, the procedure shall continue without the Member having been heard. No further requests to be excused, or to be heard, may then be accepted. 6. Where the request seeks the waiver of immunity on several counts, each of these may be the subject of a separate decision. The committee s report may, exceptionally, propose that the waiver of immunity should apply solely to prosecution proceedings and that, until a final sentence is passed, the Member should be immune from any form of detention or remand or any other measure which prevents that Member from performing the duties proper to the mandate. RR\ doc 7/10 PE v02-00

8 7. The committee may offer a reasoned opinion as to the competence of the authority in question and the admissibility of the request, but shall not, under any circumstances, pronounce on the guilt or otherwise of the Member nor on whether or not the opinions or acts attributed to him or her justify prosecution, even if, in considering the request, it acquires detailed knowledge of the facts of the case. (...) 3. Justification for the proposed decision Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union was invoked by Rosario Crocetta in his request. Indeed, the facts of the case qualify for the application of this provision. The Court of Justice has held that the scope of the absolute immunity referred to in Article 8 of Protocol No 7 must be determined solely pursuant to European Union law 1. As it has clarified, in the light of its objective of protecting the freedom of speech and independence of Members of the European Parliament and in the light of its wording, which expressly refers to votes cast as well as to opinions expressed by the Members, it is in essence intended to apply to statements made by those Members within the very precincts of the European Parliament 2. However, the Court of Justice has also recognised that a statement made by a Member beyond the precincts of the European Parliament may constitute an opinion expressed in the performance of his duties as referred to in Article 8 of Protocol No 7, taking the view that it is not the place where a statement is made that matters, but the nature and content of the statement 3. The notion of opinion for the purpose of Article 8 must be understood in a wide sense to include remarks and statements that, by their content, correspond to assertions amounting to subjective appraisal 4. It is clear that, in order to enjoy immunity, an opinion must be expressed by a Member of the European Parliament in the performance of his duties, thus entailing the requirement of a link between the opinion expressed and the parliamentary duties 5. The Court of Justice noted that the connection between the opinion expressed and parliamentary duties must be direct and obvious. Such a connection could be verified when the content of the statements presents a direct link with a general interest of concern to citizens 6. Against this background, the Committee on Legal Affairs considers that the facts of the case, as manifested in the documents which were provided to it and in Mr Crocetta s hearing, show that the statements in question have direct and obvious connection with Mr Crocetta s parliamentary activities. It is uncontested that, when he was a Member of the European Parliament and, in particular at 1 Joined Cases C-200/07 and C-201/07 Marra, cited above, paragraph Case C-163/10 Patriciello, cited above, paragraph Joined Cases T-346/11 and T-347/11 Gollnisch, cited above, paragraph 37; Case C-163/10 Patriciello, cited above, paragraph Case C-163/10 Patriciello, cited above, in the operative part and at paragraph Ibid., paragraph Ibid., paragraph 36. PE v /10 RR\ doc

9 the time of the statements in question, Mr Crocetta was very much involved, at a political level, in the fight against organised crime and its influence on politics and economy, especially as regards public procurement in the field of environmental policy. Indeed, he was first Vice-chair of the European Parliament s Special Committee on Organised Crime, Corruption and Money Laundering and a member of the Committee on the Environment, Public Health and Food Safety. During his parliamentary service, he has always warned against the covert, but dangerous ramifications of organised crime, as witness his contribution to parliamentary work, notably his questions for oral or written answer 1. Furthermore, when he made the statements in question, he raised an issue related to a general interest of concern to European citizens namely the alleged influence of organised crime on a specific public procurement procedure having important financial and environmental consequences as well as over well-known politicians which can be regarded as one of the duties of a Member of the European Parliament. Having regard to the circumstances of the case and the content of the statements, Mr Crocetta s allegations are, therefore, capable of presenting a direct and obvious link with his activities as a Member of the European Parliament. In the light of the foregoing, Rosario Crocetta, in making the statements in question, can be deemed to have been acting in the performance of his duties as a Member of the European Parliament. 4. Conclusion Pursuant to Article 9(3) of the Rules of Procedure, after considering the reasons for and against defending Mr Crocetta s immunity, the Committee on Legal Affairs recommends that the European Parliament should defend the immunity and privileges of Rosario Crocetta. 1 See Question for written answer to the Commission on Protection of citizens and the environment in Niscemi (Sicily) from the MUOS (Mobile User Objective System) of 3 August 2012, E /2012; Question for oral answer to the Commission on Corruption in EU Member States of 16 May 2012, O /2012; Shadow Rapporteur of the Report on organised crime in the European Union of 25 October 2011, 2010/2309(INI), P7_TA(2011)0459; Participation to the Debate on Closing the gap between anticorruption law and reality of 14 September 2011, O /2011; Motion for a Resolution on the EU s efforts to combat corruption of 7 September 2011, B7-0481/2011; Question for oral answer to the Council on Implementing the EU s anticorruption package of 12 July 2011, O /2011 and O /2011; Written declaration on a clean Parliament of 5 July 2010, P7_DCL(2010)0059. RR\ doc 9/10 PE v02-00

10 RESULT OF FINAL VOTE IN COMMITTEE RESPONSIBLE Date adopted Result of final vote +: : 0: Members present for the final vote Substitutes present for the final vote Substitutes under Rule 200(2) present for the final vote Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mary Honeyball, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, Emil Radev, Julia Reda, Evelyn Regner, Pavel Svoboda, Tadeusz Zwiefka Sergio Gaetano Cofferati, Heidi Hautala, Sylvia-Yvonne Kaufmann, Constance Le Grip, Stefano Maullu, Victor Negrescu Maria Noichl PE v /10 RR\ doc